These cases are not without certain challenges, and employers sometimes find themselves navigating thorny legal waters. For example, is it ever alright to discuss a person’s age or longevity on the job? Does it matter what you say or how you say it?

The answer is: It depends. Either way, words uttered in the workplace can have a serious impact on both employers and employees, regardless of the original intention.

Recently, a federal appellate court has ruled that a statement that questioned a worker’s age was acceptable because it could be interpreted in a different way.

According to court records, an IBM employee was fired after the client for whom he worked complained repeatedly about the quality of the work. He participated in a performance improvement plan to avoid termination, but when the complaints continued, he was eventually let go.

However before the employee’s termination, various managers discussed his performance by text message. One of those messages questioned the employee’s “shelf life.”

The employee sued, and claimed that the comment was evidence of age discrimination. He also alleged IBM fired him as part of Project Blue, which was a program designed to cut employees whose positions were not cost-effective. The employee claimed that Project Blue was named after the blue hair commonly associated with the elderly.

The 10th U.S. Circuit Court of Appeals unfortunately rejected the employee’s complaint. The “shelf life” comment, the court found, was simply a reference to the employee’s workload and not his age. The court went on to say that even if it were evidence of discrimination, it would only be circumstantial evidence.

As for Project Blue, the court said the name was probably a reflection of IBM’s nickname, “Big Blue,” not an effort to fire older workers.

The judges also didn’t accept the IBM employee’s argument that IBM’s explanations for his firing were pre-textual. That is, the explanations were legitimate on their face but ultimately not true. The court ruled that his performance problems were bad and extensive enough to give the company good reason to fire him.

This case illustrates how tough these cases can be to prove, and why it is so critical to secure the services of an experienced employment attorney.

It’s also a solid reminder that offhand comments in the workplace can have great significance. Sometimes those remarks are simply misinterpreted. However, one cannot discount the fact that there is sometimes there exists a deeper meaning can be construed as discrimination.

Employers have been known to prejudge employees or potential employees on the basis of everything from their weight to their financial health to their political views. These are not protected classes.

However, age, gender, race, religious affiliation and sexual orientation are protected. However, discrimination is not always overt. For this reason, off-hand comments can become significant in court cases. A company representative may not say outright that a person was fired on the basis of their age or gender, but a joke to a colleague via instant message could indicate just that.

Employees need to pay close attention to performance reviews and anything managers say about them. Keep track of any unsavory comments, noting the specifics of times, dates and witnesses. Such information may be of critical importance if you later decide to file suit.

Los Angeles employment lawsuits can be filed with assistance from the Nassiri Law Group, practicing in Los Angeles, Riverside, and Orange County. Call 714-937-2020.